Appellant petitioned the Chancellor below to adjudicate certain lands in Duval County to be her homestead and exempt from forced sale for any claims against her as contemplated under Section One of Article Ten Constitution of Florida. Her petition was denied and this appeal taken from that order.
By the record in another suit between the parties hereto it appears that Appellant made a contract with a third party to purchase the lands involved in this suit for a consideration of eighteen hundred and seventy-five dollars, that fifteen hundred dollars was paid on the contract, that the payments were in arrears, that there was due on principal and interest the sum of six hundred twenty-five dollars, and that Appellant borrowed of Appellee the last named amount, made the final payment on said land and secured her deed therefor. It also appears that when *Page 284 making this borrow Appellant promised to execute to Appellee a mortgage on said lands as security as soon as she secured her deed, that she declined to execute the said mortgage according to promise, so Appellee brought this suit in chancery to charge and sell the said lands as Appellant's separate property for the purchase price thereof under Section Two of Article Eleven of the Constitution of Florida relating to married woman's separate property. The evidence was in sharp conflict as to whether or not the mortgage was promised but the Chancellor concluded that it was and entered a final decree impressing an equitable lien on and ordering a sale of said lands to satisfy the claim of Appellee for the sum loaned Appellant and for other amounts not material here. On appeal to this Court that final decree was affirmed. Craven vs. Hartley, 95 Fla. 704, 116 So. 841.
At the time of the transaction as thus described Appellant was a feme covert but prior to the decision of this Court in Craven vs. Hartley, supra, (April 13, 1928) she had lost her husband through death and in consequence thereof had become a feme sole and the head of a family. The instant case was brought to set aside and exempt her homestead in and to the lands so purchased under the Constitution of Florida.
It is agreed by both parties that the sole question presented here is whether or not under the facts stated the loan of six hundred twenty-five dollars can be held to be an obligation "contracted for the purchase of said property" within the terms of Section Two of Article Eleven of the Constitution relating to married women's property. If this question is answered in the affirmative, then it follows that there is no basis for the homestead claim as contended for.
Article Eleven of the Constitution provides that all property, real and personal, of the wife owned by her before her marriage, or lawfully acquired afterward by gift, devise, bequest, descent, or purchase shall be her *Page 285 separate property and not liable for her husband's debts without her consent given in writing. A married woman's separate property may be charged in equity and sold, or the uses, rents, and profits thereof sequestrated for the purchase money thereof; or for money or thing due upon any agreement made by her in writing for the benefit of her separate property; or for the price of any property purchased by her, or for labor and material used with her knowledge or assent in the construction of buildings, or repairs or improvements upon her property, or for agricultural or other labor bestowed thereon, with her knowledge and consent.
In Micon vs. McDonald, 55 Fla. 776, 46 So. 291, this Court held that Article Eleven of the Constitution had the effect of removing from married women the common law disability of coverture in the cases therein enumerated, and enables her in such cases to assume obligations that can be enforced out of separate property. Nadel vs. Weber Bros. Shoe Co., 70 Fla. 218, 70 So. 20.
We think that under the facts stated the lands involved in this litigation were in the contemplation of Article Eleven of the Constitution the separate property of the Appellant lawfully acquired by her by purchase after marriage and that when she borrowed the six hundred twenty-five dollars from Appellee and made the final payment thereon the said loan to all intents and purposes became the price of property purchased by her and that said lands immediately became charged in equity for the payment of said loan.
When Appellant declined to execute the mortgage according to her promise Appellee was within his rights in seeking to have an equitable lien impressed on said lands under the doctrine announced by this Court in Jones vs. Carpenter, 90 Fla. 407,106 So. 127. This holding is in harmony with spirit and terms of Section One of Article Ten of the Constitution relating to homestead exemptions *Page 286 as it is there provided that no property shall be exempt from any contract for the purchase price thereof. Nor can the homestead exemption supersede prior judgments or liens. Pasco vs. Hendry, 73 Fla. 819, 75 So. 30.
The fact that the contract or promise to execute the mortgage was in parol was immaterial. The declaration in Article Eleven removing the disability of coverture and providing that the married woman's separate property may be sequestrated and sold for the price of any property purchased by her does not require that such sales be predicated on written contracts. When Appellee loaned Appellant the money and she applied it on the purchase price of the land and took title in her name the equitable lien of Appellee at once attached, it having been shown that Appellee relied on the promise of Appellant and the land as security. If other security had been relied on by him a different question would be presented.
In Foster Lumber Co. vs. Harlan County Bank, 71 Kan. 158, 80 P. 49, it was held that if a lender advance money for the purpose of buying a specific tract of land, upon the oral promise of the borrower to secure repayment by a mortgage upon the property when the title thereto is obtained, and, after the conveyance has been procured by the use of the money, the borrower refuse to execute the mortgage, equity will regard that as done which the borrower agreed should be done, and which ought to have been done, and will treat the transaction as creating an equitable mortgage upon the land in favor of the lender.
The doctrine of equitable liens does not depend on written instruments but may arise from a variety of transactions to which equity will attach that character. The fact that they may be predicated on a parol agreement is not obnoxious to the statute of frauds because they arise by operation of law from the conduct of the parties. Jones vs. Carpenter, supra, Foster Lumber Co. vs. Harlan County Bank, supra. *Page 287
We therefore conclude that the loan of six hundred twenty-five dollars was an obligation contracted for the purchase of separate property of Appellant and that said property is bound for the payment thereof. It follows that it cannot be held as her homestead. This holding accords with our holding in Craven vs. Hartley, supra.
Affirmed.
WHITFIELD, P.J., AND DAVIS, J., concur.
BROWN, J., concurs specially.
BUFORD, C.J., AND ELLIS, J., dissent.